LEE v. the STATE. , 827 S.E.2d 914 ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 3, 2019
In the Court of Appeals of Georgia
A19A0400. LEE v. THE STATE. GS-012C
GOSS, Judge.
On appeal from the denial of his motion to withdraw his guilty plea, Rudy
Cameron Lee argues that he was not properly informed of the consequences of his
plea, which rendered it defective, and that trial counsel was ineffective. We find no
error and affirm.
“After sentencing, the decision on a motion to withdraw a guilty plea is within
the trial court’s discretion and withdrawal of the plea is allowed only when necessary
to correct a manifest injustice,” such as where “a defendant is denied effective
assistance of counsel.” (Citations and punctuation omitted.) Gay v. State, 342 Ga.
App. 242, 243 (803 SE2d 113) (2017).
Thus viewed in favor of the judgment, the record shows that while serving a
prison sentence in Tatnall County, Lee was indicted in that county for murder (Count
1), two counts of felony murder (Counts 2 and 3), two counts of aggravated assault
(Counts 4 and 5), street gang participation (Count 6), and riot in a penal institution
(Count 7). On March 15, 2018, and pursuant to a negotiated plea agreement, Lee
entered a plea of guilty to the lesser included offense of voluntary manslaughter as
to Count 1 and to Counts 4, 5, 6 and 7. Lee was sentenced to 20 years to serve.
Represented by new counsel, Lee filed a timely motion to withdraw his plea. After
a hearing, the trial court denied the motion to withdraw. This appeal followed.
1. Lee first argues that his guilty plea was not knowingly, voluntarily, and
intelligently entered because the trial court’s explanation of the sentence was
confusing. We disagree.
The parties agree that Lee’s previous sentence, which he was serving at the
time the plea at issue was entered, was 20 years with 10 to serve. The record shows
that after the trial court established on the record that Lee’s plea to the charges at
issue was intelligent and voluntary, the following colloquy took place:
THE COURT: It is the judgment of this Court, as to Count Number 1,
Mr. Lee, that you serve 20 years to serve. Counts 4, 5, 6, and 7 are all 20
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years to run concurrent. Count 1 is consecutive to the sentence that
you’re now serving. It starts, my understanding is, today - -
DEFENDANT LEE: It’s consecutive?
THE COURT: - - because you had a lot of - -
[DEFENSE COUNSEL]: No, Judge. It’s supposed to be concurrent to
his existing sentence.
THE COURT: I’m sorry. They’re all concurrent?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: All concurrent and concurrent to the existing
sentence, Judge.
THE COURT: Concurrent to each other and concurrent to the sentence
you are now servicing, which as I understand, will add some 18 years
or…
[PROSECUTOR]: Approximately.
THE COURT: - - approximately 18 years to your sentence. Do you
understand that?
THE DEFENDANT: Yes.
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THE COURT: That’s the Court’s understanding. Now, whatever the law
will allow - - I’ll put that in the order: Whatever the law will allow you
to have credit for, you’ll be given credit for.
[DEFENSE COUNSEL]: Thank you, Judge.
THE COURT: Do you understand that?
DEFENDANT LEE: Yes.
THE COURT: That’s something I don’t - - I don’t decide that. The
Department of Corrections calculates that. Do you understand that?
DEFENDANT LEE: Yes, sir.
THE COURT: All right. So it’s 20 years on all counts to run concurrent
with each other and concurrent to the sentence you’re now serving. Do
you understand that?
DEFENDANT LEE: Yes, sir.
THE COURT: All right. Now that the Court has imposed its sentence,
I’m going to give you a chance to withdraw it and have a trial. Do you
wish to withdraw it, or do you wish for your plea to stand?
DEFENDANT LEE: Stand.
THE COURT: So made the judgment of the Court.
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[DEFENSE COUNSEL]: Judge, I would like to place on the record - -
although, I know the Court has already addressed the issue of credit, I
just want it on the record that he has been continually in the custody of
the State of Georgia through the Department of Corrections since the
date of the incident, July 19, 2012, - -
THE COURT: Okay.
[DEFENSE COUNSEL]: - - and has at no time posted a bond in Tattnall
County, to the best of my knowledge.
THE COURT: Okay. So noted.
[DEFENSE COUNSEL]: Thank you, Judge.
THE COURT: That’s the judgment of the Court.
(Emphasis supplied.)
After the hearing on the motion to withdraw, the trial court entered an order
finding that Lee had been satisfied with his representation at the plea hearing, that
Lee had understood that the court had “no control over what credit [Lee] might get”
for time already served, and that with this understanding Lee had “still wished to
enter a guilty plea.” Concluding that Lee’s plea had been entered “freely and
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voluntarily, knowingly and intelligently,” and that he had suffered “no manifest
injustice,” the trial court denied Lee’s motion to withdraw his plea.
This record supports the factual conclusion that, after some initial confusion,
the trial court explained and Lee understood that the new sentence would run
concurrently with the previously imposed sentence, and that the Department of
Corrections, not the trial court, would calculate the proper credit for time already
served. It follows that the trial court did not abuse its discretion when it rejected Lee’s
assertion that his plea was not knowingly and voluntarily made. See Covington v.
State, 196 Ga. App. 498, 498 (396 SE2d 298) (1990) (affirming denial of motion to
withdraw guilty plea when a prosecutor had adequately explained a plea agreement,
including a provision that the imposition of a sentence as consecutive or concurrent
would be “left up to the [c]ourt”).
2. Lee also asserts that his trial counsel was ineffective because counsel did not
explain adequately whether Lee would receive credit for time served. We disagree.
“[W]hen a criminal defendant seeks to withdraw a guilty plea on the ground of
ineffective assistance of counsel, the ineffective assistance claim must be evaluated
under the two-prong test set forth in Strickland v. Washington, [466 U.S. 668, 104
SCt 2052, 80 LE2d 674 (1984)],” deficient performance and prejudice. Alexander v.
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State, 297 Ga. 59, 64 (772 SE2d 655) (2015). When reviewing a trial court’s ruling
on the effectiveness of trial counsel, “we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we independently apply the
legal principles to the facts.” (Footnote omitted.) Suggs v. State, 272 Ga. 85, 88 (4)
(526 SE2d 347) (2000).
At the hearing on Lee’s motion to withdraw his plea, trial counsel testified that
he advised Lee before the hearing that because Lee was serving “a sentence for other
charges,” he “[might] not be entitled to credit [for time served] as a matter of law,”
and that he would likely receive such credit only from the date of the plea itself. The
trial court was entitled to believe this testimony and to reject Lee’s testimony to the
contrary as it drew the conclusion that trial counsel had performed effectively, and
we affirm this factual conclusion as not clearly erroneous. See Gower v. State, 313
Ga. App. 635, 637 (722 SE2d 383) (2012) (trial court was entitled to disbelieve
defendant’s self-serving testimony in favor of that by defendant’s trial counsel as it
concluded that counsel was not ineffective, such that there was no abuse of discretion
in denying defendant’s motion to withdraw his plea).
Judgment affirmed. McFadden, P. J., and McMillian, J., concur.
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